Dominy-Gatz v. State
| Decision Date | 16 December 2016 |
| Docket Number | No. 05-15-01194-CR,05-15-01194-CR |
| Parties | KELLIE LYNN DOMINY-GATZ, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 15th Judicial District Court Grayson County, Texas
Before Justices Fillmore, Brown, and O'Neill1
Opinion by Justice Fillmore
In three points of error, appellant Kellie Lynn Dominy-Gatz asserts the trial court erred in denying her motion to suppress all evidence resulting from an illegal search of her vehicle and in denying her motion to suppress statements she made to a law enforcement officer, and the evidence was insufficient to support her conviction for possession with intent to deliver methamphetamine. As modified, we affirm the trial court's judgment.
Dominy-Gatz was charged with possession with intent to deliver methamphetamine in an amount of four grams or more but less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(d) (West 2010). The jury found Dominy-Gatz guilty of possession with intent todeliver methamphetamine in an amount of more than four grams but less than two hundred grams as charged in the indictment.2 Dominy-Gatz pleaded true to the enhancement paragraph of the indictment. The trial court found the enhancement paragraph true and assessed punishment of twenty years' confinement. Dominy-Gatz filed this appeal of her conviction.
During the guilt-innocence phase of trial, the jury heard the testimony of Denison, Texas, police officer Jeremy Monroe. At approximately 1:15 a.m. on December 10, 2014, Monroe was patrolling the streets of Denison. At that time, Monroe was following a vehicle driven by Daniel Pena and occupied by four males. Monroe had previously encountered Pena and was aware that Pena was known to sell and distribute methamphetamine. Monroe followed Pena's vehicle to a Denison bar with a bad reputation. Monroe previously had been dispatched to that bar on a number of occasions. Pena went into the bar for only eight to ten minutes, a visit Monroe found suspiciously short in duration. Pena then proceeded to a residence and dropped off two individuals who had been in his vehicle.
From the residence, Pena drove to the parking lot of a WalMart store. Monroe, who had exited his police cruiser behind an adjacent building to avoid being seen by Pena, surveilled the WalMart parking lot using binoculars. As soon as Pena parked, a four-door silver passenger car pulled beside Pena's vehicle and parked. Two females exited the silver car. Two males exited Pena's vehicle, and Monroe did not see any other occupants at that time in Pena's vehicle. The two males who exited Pena's vehicle and the two females who exited the silver car went into the WalMart. About ten minutes later, those four individuals exited the WalMart together, returnedto their cars, and drove away from the parking lot. When the silver car passed Monroe, he noted the "tag light" for illumination of the rear license plate was not functioning. This is a violation of the Texas Transportation Code, see TEX. TRANSP. CODE ANN. § 547.322(f) (West 2011),3 for which a traffic stop lawfully could be conducted and a citation could be written. Monroe radioed fellow Denison police officer Troy Larouche, who was within two blocks of Monroe's location, and advised Larouche that a silver car without illumination of its rear license plate had left the WalMart parking lot.
Monroe drove from his location adjacent to the WalMart parking lot to a nearby Motel 6 where Pena's vehicle had been driven. Monroe testified that at the Motel 6, Pena gave consent for the search of his vehicle; no contraband was found in Pena's vehicle or on his person.
Larouche testified he was on patrol in the early morning hours of December 10, 2014. At about 1:30 a.m., he received a communication from Monroe that Monroe was following Pena's vehicle. Larouche knew Pena was an individual who distributed and sold illegal narcotics in Denison and the Grayson County area. Monroe advised Larouche of the location of Pena's vehicle and the silver car observed by Monroe in the WalMart parking lot. Larouche testified that from his location across the street, he had clearly seen Pena's vehicle and the silver car in the WalMart parking lot. When Pena's vehicle and the silver car were driven out of the WalMart parking lot, Monroe also advised Larouche of the direction the cars were traveling and that thesilver car's rear license plate was not illuminated. Larouche personally did not observe the traffic offense; however, upon receiving Monroe's information regarding the traffic violation, Larouche drove to the Motel 6 parking lot where Pena's vehicle and the silver car were then parked.
Larouche pulled behind the silver car as Dominy-Gatz was exiting the driver's side of the car. The passenger in Dominy-Gatz's car had not exited the car. Pena had parked his vehicle a few parking spaces away from where Dominy-Gatz had parked. Larouche saw two males who had exited Pena's car. Larouche believed the two men were there to meet with Dominy-Gatz. When the men saw Larouche, they walked in the opposite direction, and Larouche advised Monroe where the men were, at which point Monroe made contact with those men.
Larouche explained to Dominy-Gatz that he had stopped her because the rear license plate on her car4 was not illuminated. Dominy-Gatz gave Larouche her name and date of birth and told him that the passenger in her car was her nineteen-year-old daughter, Chelsea. Because Larouche had observed Dominy-Gatz's car parked next to Pena's vehicle in the WalMart parking lot, he was suspicious there would be narcotics in her car. When asked about her location prior to driving to the Motel 6, Dominy-Gatz confirmed she had driven to the Motel 6 from the WalMart.
Approximately eight minutes after making the traffic stop, Larouche radioed dispatch requesting information on any outstanding arrest warrant for Dominy-Gatz or Chelsea. While speaking with Dominy-Gatz, Larouche went to the driver's door which Dominy-Gatz had left ajar when she exited the car. He saw in plain view an open alcoholic beverage container in Dominy-Gatz's car, and Chelsea stated it was hers. He also observed in plain view a "torchlighter" commonly used by individuals who smoke methamphetamine on the floorboard of the driver's side of the car. Located beside the torch lighter in plain view Larouche observed an eyeglass case. Protruding from the eyeglass case was the burnt bulb end of a glass pipe commonly used to smoke methamphetamine. Larouche had seen these types of pipes regularly in his police work dealing with individuals who smoke methamphetamine. Larouche testified that, in addition to the open alcoholic beverage container, the drug paraphernalia gave him probable cause to continue his investigation and to search the car. Larouche asked Chelsea to exit the car, and she complied. Larouche retrieved the torch lighter and eyeglass case from the car. He allowed Chelsea to reenter the car because it was cold outside and he wanted to speak with Dominy-Gatz outside Chelsea's presence. At approximately ten minutes after making the traffic stop, Larouche asked for vehicle registration information.
Larouche explained to Dominy-Gatz that he had observed the torch lighter and eyeglass case with what appeared to be a methamphetamine pipe protruding from the case. Larouche took the eyeglass case from the car and opened it. Larouche again requested that Chelsea exit the car, and he performed a search of Dominy-Gatz's car. While performing the search, he found a black nylon pouch in the right hip area of the driver's seat. Inside the black pouch, he found two glass pipes containing burnt residue, a large straw or "shovel" commonly used to scoop methamphetamine from a package, a plastic bag containing a crystalline substance, a plastic bag containing pills, and smaller plastic bags Larouche testified were used for packaging methamphetamine for sale. There were also feminine hygiene products in the black pouch which supported his belief the pouch belonged to Dominy-Gatz, and Larouche testified Dominy-Gatz had care, custody, and control of the eyeglass case and the black pouch found in her car.
While Larouche was searching Dominy-Gatz's car, her cell phone repeatedly rang indicating on the phone's screen that the caller was "Guido." Larouche testified Guido is anindividual in the Grayson County area known to distribute and sell methamphetamine and other narcotics. Larouche testified that Chelsea's cell phone also received calls from an individual identified on the phone's screen as "Guido."
Larouche testified he was "trying to work" with Dominy-Gatz and he wanted to help her. He stated that had Dominy-Gatz admitted there was methamphetamine in her car, he would have urged her to give him information as to who supplied the drugs in order to investigate "higher up the chain," a technique Larouche referred to as "flipping. Dominy-Gatz admitted she was going to meet Pena to purchase methamphetamine, but stated she had not purchased methamphetamine from him because she did not have any money. However, Larouche testified Dominy-Getz had over twenty dollars in her pocket which was enough to purchase methamphetamine. Larouche recalled Dominy-Gatz stating the items he found in her car could have been placed there by someone else.5
Larouche released Chelsea and Dominy-Gatz's car. Larouche arrested Dominy-Gatz and transported her to jail.
The jury viewed the digital recording made from the dashboard camera in Larouche's police cruiser. The recording showed Larouche's police cruiser pulling in behind Dominy-Gatz's parked car which Dominy-Gatz had exited. Larouche asked Dominy-Gatz for her driver's license, and she indicated she did not have it with her. She did provide...
To continue reading
Request your trial
-
Appleby v. State, 11-17-00038-CR
...properly illuminate the plate so that it can be seen from a distance of fifty feet. See Dominy-Gatz v. State, No. 05-15-01194-CR, 2016 WL 7321435, at *1, 8 (Tex. App.—Dallas Dec. 16, 2016, pet. ref'd) (mem. op., not designated for publication). Appellant asserts that the stop was illegal be......